Klein v. City of Yonkers

• Decision Date: 09 June 1981
• Citation: 425 N.E.2d 865,442 N.Y.S.2d 477,53 N.Y.2d 1011
• Parties: , 425 N.E.2d 865 Harry KLEIN, Appellant, v. CITY OF YONKERS, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 477

442 N.Y.S.2d 477

53 N.Y.2d 1011, 425 N.E.2d 865

Harry KLEIN, Appellant, v. CITY OF YONKERS, Respondent.

Court of Appeals of New York.

June 9, 1981.

Ellen Lefkowitz, New York City, for appellant.

Arthur J. Doran, Jr., Corp. Counsel, Yonkers (Howard M. Schupak and Dara M. Kane, Asst. Corporation Counsel, Yonkers, of counsel), for respondent.

OPINION OF THE COURT

PER CURIAM.

Section 50-i of the General Municipal Law requires that an action against a municipality for personal injury or property damage be commenced within one year and 90 days after "the happening of the event upon which the claim is based." In Erickson v. Town of Henderson, 30 A.D.2d 282, 291 N.Y.S.2d 403, a wrongful death case, this language was held to bar an action commenced more than one year and 90 days after the happening of the event causing death, (30 A.D.2d, at p. 286, 291 N.Y.S.2d 403) even though the court acknowledged that under an accrual rule the action would have been timely (30 A.D.2d, at p. 284, 291 N.Y.S.2d 403). Since Erickson, courts have uniformly concluded that the limitation period begins to run upon the happening of the event, irrespective of when the action accrued (e. g., Doyle v. 800, Inc., 72 A.D.2d 761, 421 N.Y.S.2d 379; Phillips v. Village of Waterford, 48 A.D.2d 745, 746, 368 N.Y.S.2d 77; Cota v. Madison Cent. School Dist., 89 Misc.2d 646, 392 N.Y.S.2d 233, aff'd 62 A.D.2d 1083, 404 N.Y.S.2d 547). In our view, the plain language of the statute admits of no other interpretation. If the statute is to be amended, that must be accomplished by legislative action and not judicial fiat.

Accordingly, the order of the Appellate Division, 73 A.D.2d 931, 423 N.Y.S.2d 685, should be affirmed, with costs.

MEYER, Judge (dissenting).

I would reverse the order of the Appellate Division and reinstate the order of Special Term denying defendant's motion under CPLR 3211(a) (pars. 5, 7).

The complaint alleges that in 1964 defendant city negligently issued a certificate of occupancy for a multiple residence located at 197 Ravine Avenue, that the building did not conform to the filed plans or to the ordinances of the city in that it was built with defective and improper fire stops, that in reliance on the certificate of occupancy plaintiff purchased the building in February, 1969, that on January 15, 1973 fire destroyed the building without any fault of plaintiff, that a notice of claim was filed on April 11, 1973 and that more than 30 days had elapsed after the filing of the claim without any payment being made by the city.

Though Rottkamp v. Young, 21 A.D.2d 373, 249 N.Y.S.2d 330, aff'd on opn. at Appellate Division 15 N.Y.2d 831, 257 N.Y.S.2d 944, 205 N.E.2d 866, holds that, because the decision whether to do so is discretionary and quasi-judicial, no action will lie for refusal to issue a building permit, that holding does not bar the instant action. The distinguishing feature is that we deal in this action with a certificate of occupancy for a multiple residence, as to which the Legislature has expressly provided, in subdivision 5 of section 302 of the Multiple Residence Law that "A certificate, a record in the department, or a statement signed by the head of the department that a certificate has been issued, may be relied upon by every person who in good faith purchases a multiple dwelling". I agree with the holdings of the Appellate Division, Fourth Department, in Gordon v. Holt, 65 A.D.2d 344, 412 N.Y.S.2d 534, mot. for lv. to app. den. 47 N.Y.2d 710, 419 N.Y.S.2d 1026, 393 N.E.2d 1049 and Sexstone v. City of Rochester, 32 A.D.2d 737, 301 N.Y.S.2d 887, and of the Second Department in Doyle v. 800, Inc., 72 A.D.2d 761, 762, 421 N.Y.S.2d 379, that a municipality may in light of the Multiple Residence Law provision be held responsible for its negligent misrepresentation to a plaintiff who establishes his reliance in good faith on the certificate of occupancy. Accordingly, the first cause of action is valid and, that being so, the complaint could not be dismissed under CPLR 3211(a) (par. 7) (Siegel, New York Practice, § 265; 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3211.38).

Nor can it properly be dismissed under subdivision 5 on Statute of Limitations grounds. The Appellate Division held that the word "event" as used in the clause "the happening of the event upon which the claim is based" contained in section 50-i (subd. 1, par. c) of the General Municipal Law, must "be deemed to be the issuance of the certificate of occupancy in July, 1964, not the destruction of the building by fire in 1973". It reached that conclusion on the basis of its own earlier decision in Doyle v. 800, Inc., 72 A.D.2d 761, 421 N.Y.S.2d 379, supra, which in turn relied upon the review by the Fourth Department in Erickson v. Town of Henderson, 30 A.D.2d 282, 291 N.Y.S.2d 403, of the legislative history of the act (L. 1959, ch. 788) by which section 50-i was added to the General Municipal Law. Simply put, the Erickson review of legislative history was not addressed to the instant question and Doyle's use of it without closer evaluation of the issue in Erickson is clearly erroneous. Unless legislative intent is to be changed by judicial fiat, intentional or unintentional, Doyle's error should now be corrected by a holding that, as the Legislature clearly intended, the word "event" in the quoted clause is synonymous with "accident" and limitations therefore, do not begin to run until "the negligent act produced injury to the plaintiffs" (Sexstone v. City of Rochester, supra).

Under consideration in Erickson was the fact that a cause of action for wrongful death did not under prior law "arise" or "accrue" until appointment of an estate representative (Christian v. Village of Herkimer, 5 A.D.2d 62, 169 N.Y.S.2d 81, aff'd 5 N.Y.2d 818, 181 N.Y.S.2d 212, 155 N.E.2d 122). Erickson did not define what was meant by the phrase "the happening of the event upon which the claim is based." Rather it noted, quoting from the legislative note set forth at page 21 of the Report of the Joint Legislative Committee on Municipal Tort Liability (N.Y. Legis. Doc. 1959, No. 36), that while the period of limitations as to all municipalities had been one year, under some of the governing statutes the period ran from the happening of the event and under others from accrual of the cause of action, and that the Legislature's purpose was to eliminate uncertainty by making the period run in all cases from the happening of the event, that being the uniform interpretation of "accrual of the cause of action" in any event. The effect was to reduce the period of limitations as to municipalities previously governed by "accrual" because under the revision proposed the limitations period would begin to run with the injury-causing event and would not be tolled by the time necessary to obtain appointment of a representative. The result reached in Erickson was fully consistent with the legislative intent evidenced by the Joint Committee Report, but was in no way dependent upon a definition of the word "event", nor was there any need in that case to define that word, since the action was not begun until five days short of the second anniversary of decedent's death.

The result reached in Doyle and in the instant case is, however, wholly inconsistent with the legislative understanding of the way in which the word "event" was used. The study upon which the proposed new section 50-i was based appears in the report beginning at page 51 and contains irrefutable evidence that the words "happening of the event" were used to mean the injury-producing event, i. e., the time of the accident, not of the negligent act. Thus the conclusion of the study (at pp. 60-62) stated that as to the time within which an action must be brought the common provision was one year but that period ran variously from (a) the date of the accident, (b) the accrual of the cause of action, or (c) the filing of a notice of claim. It then noted that "such decisional law as exists uniformly holds that the provision 'from the date the cause of action accrued' is to be interpreted as 'from the date of the accident ' " (at pp. 61; emphasis supplied), that under subdivision 5 of section 50-e of the General Municipal Law application for permission to file a late claim "must be made 'within the period of one year after the happening of the event upon which the claim is based', i. e., from the time of...